Seyfarth Synopsis:  An executive order from President Trump will likely halt the Justice Department’s public accommodations website rulemaking.

President Obama’s Department of Justice (DOJ) had stated that proposed regulations for public accommodations websites would be issued in 2018—eight years after the agency began its rulemaking process.  The likelihood of such a proposed regulation being issued now is virtually non-existent.

Among the flurry of executive orders President Trump signed this week was one entitled “Reducing Regulation and Controlling Regulatory Costs”.  This EO virtually obliterates any chance that the DOJ will issue any website regulations for public accommodations websites during Trump’s Administration.

The EO directs all federal agencies to:

  • Identify at least two existing regulations to be repealed for each new regulation;
  • Ensure that the total incremental cost of all new regulations, including repealed regulations, to be finalized in 2017 be “no greater than zero;”
  • Offset any new incremental costs associated with new regulations by eliminating existing costs associated with at least two prior regulations.

The EO exempts regulations relating to: (1) military, national security, or foreign affairs functions of the United States; and (2) agency organization, management, or personnel.  It also vests the Director of the Office of Management and Budget with the authority to grant additional exemptions.  The stated purpose of this EO is to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations”.  We therefore assume that the EO would not apply to regulations applicable to state and local governments that the DOJ has been working on and could issue under Title II of the ADA.  It is unclear what, if any, impact this EO may have on the Title II regulatory effort.

While our prediction may seem dire, we cannot fathom what two regulations the DOJ would repeal to make way for new public accommodations website regulations and offset their associated cost.  Though some may think that businesses are better off with no regulations on this subject, we disagree.  The current tsunami of lawsuits and demand letters about allegedly inaccessible websites is the result of uncertainly and absence of regulations that impose reasonable rules that provide adequate time for businesses to comply.  This is one issue upon which virtually all who practice in this space – on the legal, technological, or advocacy side – agree.

Edited by Kristina Launey.

Seyfarth Synopsis: With the recent proliferation of web accessibility demand letters and lawsuits, businesses often ask whether settling a claim with one plaintiff will bar future lawsuits brought by different plaintiffs. One federal judge recently said no.

Plaintiffs Rachel Gniewskowski, R. David New, and Access Now, Inc.—represented by Carlson, Lynch, Kilpela & Sweet—sued retailer Party City in the Western District of Pennsylvania on September 6, 2016, alleging that Party City’s website is not accessible to visually impaired consumers in violation of Title III of the Americans with Disabilities Act (“ADA”).  On October 7, 2016 (while the Pennsylvania lawsuit was pending), Party City entered into a confidential settlement agreement with Andres Gomez, who had previously filed a similar lawsuit in Florida.  Both lawsuits contained the same basic set of facts and legal claims, and sought similar relief—modification of the website to make it accessible to, and useable by, individuals with disabilities.

Party City filed a summary judgment motion in the Pennsylvania case, arguing that the Pennsylvania case was barred by the prior settlement under principles of res judicata.  Res judicata applies when three circumstances are present: (1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies, and (3) a subsequent suit based on the same cause of action.  In an order issued on January 27, 2017, the court denied the motion, finding that Party City could not establish the second element.

In its attempt to establish the second element, Party City argued that the Pennsylvania plaintiffs Gniewskowski and New were “adequately represented” in the Florida action by Gomez.  The Court disagreed, finding Gomez did not purport to represent Gniewskowski or New, noting that the “complaint in Gomez’s lawsuit made clear that Gomez brought his lawsuit ‘individually.’” Nor could Party City “point to any ‘procedural protections…in the original action’ that were intended to protect the current plaintiffs’ rights to due process”, such as notice of the prior settlement, or measures the court in the prior litigation took to determine whether the settlement was fair as to absent parties.

The court’s straightforward application of res judicata principles is not surprising, and even less so because there is no indication that Party City had committed to making its website accessible in the confidential settlement agreement—the relief sought in the Pennsylvania case. Public settlement agreements requiring a company to make its website accessible, or a consent decree in which a court orders a company to make its website accessible, are much more likely to deter additional website accessibility lawsuits.  Companies that are under a court order to make their websites accessible have a strong argument that any subsequent ADA Title III suit is moot because the only relief that can be obtained in such a suit—injunctive relief—has already been ordered.  Plaintiffs are also likely to find companies that have made a contractual commitment to making their websites accessible to be less attractive targets because the work may be completed while the second lawsuit is pending, mooting out the claim.  Ultimately, the best deterrence is having a website that is accessible to users with disabilities.  While there is still no legally-prescribed standard for accessibility (nor, with the present Administration’s actions toward regulations does it appear likely one will issue anytime soon), the Web Content Accessibility Guidelines, 2.0 Levels A and AA are widely used in the industry as the de facto standard.

Seyfarth Synopsis: New website and mobile app accessibility settlement agreement requires WCAG 2.0 AA conformance, training, and feedback mechanism.

Being named one of the most innovative companies of 2016 doesn’t make one immune from a website and mobile app accessibility lawsuit.  Capping 2016’s banner accessibility lawsuit count, including record website accessibility lawsuit numbers, on which we reported yesterday, was an end-of-the-year settlement between innovative local-sourcing salad restaurant Sweetgreen, Inc. and two blind individuals, on behalf of other similarly-situated individuals.

The settlement concluded a lawsuit filed on March 2, 2016 in the United States District Court for the Southern District of New York, which alleged that Sweetgreen discriminated against the plaintiffs due to an online ordering portal and mobile app that were not accessible in violation of Title III of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Specifically, the plaintiffs alleged that Sweetgreen’s online and mobile app ordering systems allowed customers to “customize signature salads, filter by dietary preferences, track calories and more,” but that barriers to accessibility on the online ordering portal and mobile app prohibited them from independently placing salad orders online for pick-up.

The settlement agreement requires:

  • Improving accessibility to both the online ordering portal and mobile app (excluding third party content except as integral to an online transaction function) to conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria by March 31, 2017, and maintaining that conformance;
  • A link on Sweetgreen’s contact page that provides visitors the opportunity to provide feedback regarding accessibility;
  • Attempt to remedy accessibility issues raised through the feedback page within 30 days of receipt; and
  • For a period of two years, web accessibility training to employees who write or develop programs or code for http://order.sweetgreen.com, and its mobile applications, or who publish final content to http://order.sweetgreen.com, and its mobile applications.

These are common settlement terms; signaling they are also good proactive steps for companies to take in their own web and mobile app accessibility efforts.  And for those companies frustrated with the proliferation of ADA lawsuits and demand letters, some solace in knowing they’re not the only ones grappling with this issue.

Notably, one of the plaintiffs, Mika Pyyhkala, was a plaintiff (in addition to the National Federation of the Blind) in the landmark web accessibility H&R Block lawsuit and consent decree.  Advocacy group Washington Lawyers’ Committee For Civil Rights And Urban Affairs represented Pyyhkala in the Sweetgreen lawsuit.

Edited by Minh Vu.

Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years.  In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013.  In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)
ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions.  Here are the numbers for the top ten states:

  1. CA: 2468
  2. FL: 1663
  3. NY: 543
  4. AZ: 335
  5. TX: 267
  6. GA: 193
  7. UT: 124
  8. PA: 102
  9. MN: 96
  10. CO: 92
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits.  Other states that experienced significant increases include Arizona, California, Colorado, and Georgia.  Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers?  While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits.  There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps.   This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105).  We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility.  Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit.  Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation.  There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.

By: ADA Title III Editorial Board

Seyfarth Synopsis: Final Rule Setting WCAG 2.0 AA as the Federal Agency Website Standard Published in Federal Register, Triggering Compliance Deadline of January 18, 2018.

Last week we reported that the Access Board announced a final rule, under the authority of Section 508 of the Rehabilitation Act, requiring the websites and electronic content of federal agencies to conform to WCAG 2.0 AA within one year of the date the rule is published in the Federal Register.  This final rule was published in the Federal Register yesterday, January 18, 2017, making the effective date of the final rule March 20, 2017; and requiring compliance with the new rule setting WCAG 2.0 AA as the standard for federal government websites by January 18, 2018.

Seyfarth Synopsis:  DOJ announces that proposed rules for state and local government websites will issue July 2017.

The DOJ announced last week in the federal government’s Unified Agenda that it will be issuing a proposed rule for state and government websites in July 2017.  The Unified Agenda provided no date for the proposed rule for public accommodations websites, however.  As we reported previously in May the DOJ had issued a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM) for the state and local website rulemaking  in which it stated that the results of that rulemaking would “facilitate the creation of an infrastructure for web accessibility that will be very important in the Department’s preparation of the Title III Notice of Proposed Rulemaking on Web site accessibility of public accommodations.”   The SANPRM posed more than 120 questions for public comment, the period for which closed on October 7.

Given the many delays in the state and local government website rulemaking which started in 2010, we have little confidence that a proposed rule will really issue in July 2017.  Furthermore, the projected July 2017 date was likely set before the election which injects additional uncertainly for the reasons we discussed in a prior post.

Edited by Kristina Launey.

Seyfarth Synopsis:  The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them.  Businesses should seek advice now on how to manage risk in this chaotic environment.

As we predicted, website accessibility lawsuits and threatened claims have become big business for the plaintiffs’ bar.  More law firms are filing lawsuits or sending demand letters alleging individuals with disabilities are denied access to a business’s goods and services due to inaccessible websites than ever.  The number of lawsuits filed in federal court since the beginning of 2015 has surged to at least 244 as of October 20, 2016.  Retailers have been the most popular targets, followed by restaurant and hospitality companies.

Number
Number of federal website lawsuits by industry from January 2015 to October 20, 2016: Academic (3), Dating Services (1), Entertainment (9), Financial (2), Gaming (1), Hospitality (12), Insurance (1), Medical (8), Personal Services (4), Restaurant (45), Retail (148), Sports (2), Utility (1), Vehicle Manufacturer (7)

We analyzed the data to find that five firms dominate the space, but we have seen more and more attempting to get in on the action.

Plaintiff's firms filing the most federal website lawsuits since January 2015: Block Leviton (3%), Carlson Lynch (45%), Law Office of Joseph R. Manning Jr. APC (7%), Lee Litigation Group (33%), Nelson Boyd (5%), Newport Trial Group (19%), Scott R. Dinin, PA (106%), Stewart, Murray & Associates Law Group (6%), Other Firms (8%)
Plaintiff’s firms filing the most federal website lawsuits since January 2015: Block Leviton (1%), Carlson Lynch (18%), Law Office of Joseph R. Manning Jr. APC (3%), Lee Litigation Group (14%), Nelson Boyd (2%), Newport Trial Group (8%), Scott R. Dinin, PA (43%), Stewart, Murray & Associates Law Group (3%), Other Firms (8%)

Florida, Pennsylvania, New York, and California federal courts have 95% of the lawsuits at this point, but, with two months left in the year, that could change.

States with the most federal website lawsuits being filed since January 2015: California (29), Massachusetts (5), Pennsylvania (43), Washington (5), Florida (124)
States with the most federal website lawsuits since January 2015: Arizona (1), California (29), Florida (124), Indiana (1), Massachusetts (5), New York (35), Pennsylvania (43), Texas (1), Washington (5)

We have previously reported that several law firms representing unnamed clients with disabilities had sent out hundreds of demand letters to various types of businesses concerning their allegedly inaccessible websites.  From what we can tell, very few of those demand letters went to financial services institutions.  We have learned that the most recent batch of demand letters is focused on the websites of community banks around the country.

Meanwhile, we still have no proposed regulations for public accommodations websites from the DOJ and a change in administration could derail or delay the rulemaking process further.  Thus, the need is no less urgent for businesses to come up with a plan to mitigate their litigation exposure in this tumultuous environment.

Edited by Kristina M. Launey.

*We updated this post to correct the data, as we found the number of lawsuits filed to be even higher than we previously reported. There is no easy way to track these website cases as they are filed so the numbers could be even higher.

Seyfarth Synopsis: DOJ announced today an extension to October 7, 2016 for the public to submit comments on the SANPRM for state and local government websites.

In May of this year the Department of Justice surprised us by issuing a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM), rather than – as all expected – actually issuing a proposed regulation for state and local government websites under Title II of the ADA.  In the SANPRM the DOJ seeks public input on well over 100 of tentative positions that it may take in a proposed regulation, including input on the costs and benefits of such a proposed rule.  The SANPRM imposed an August 8, 2016 deadline for submission of public comments.  Today, the DOJ extended the comment period by 60 days to October 7, 2016 after receiving three comments requesting extensions.  DOJ cited the effect these Title II regulations will have on the Title III web accessibility regulations as a reason for this extension: “[a] Title II Web accessibility rule is likely to facilitate the creation of an infrastructure for web accessibility that will be very important in the Department’s preparation of the Title III Notice of Proposed Rulemaking on Web site accessibility of public accommodations.”  DOJ also noted that “further delays in this Title II rulemaking will, therefore, have the effect of hindering Title III Web rulemaking’s timeline as well” – further answering questions we’ve heard from many as to how interdependent these two regulatory processes really are.

This highlights the importance of organizations representing various sectors that own or operate “public accommodations” to weigh in on these important issues – which the DOJ has expressly stated will directly impact it future proposed rule for public accommodations websites, currently slated for 2018.  If your industry association has not drafted comments, this extension provides you the opportunity – there is still time.

For an overview of the key issues that warrant comment by public accommodations now, please see our prior post.


In honor of the 26th anniversary of the ADA, we are sharing our mid-year count of ADA Title III lawsuits for 2016 and it’s newsworthy:  The number of lawsuits filed in federal court is already at 3,435, up 63% from last year’s mid-year number of 2,114.  If the pace continues, the 2016 total may top 7,000.  To put the numbers into perspective, more lawsuits were filed in the past six months than were filed in all of 2013 when there were a mere 2,722 lawsuits.  The three states with most lawsuits continue to be California, Florida, and New York, but there is a shake-up in the fourth position.  Arizona, with 230 lawsuits, has beaten out Texas.  Based on our own practice, most lawsuits continue to be about physical access barriers but there has been a steady increase in lawsuits about websites that are allegedly not accessible to individuals with disabilities.  We will be provide more analysis at the end of 2016, which promises to be another record-breaking year.

Seyfarth Synopsis: New Affordable Care Act and Medicaid Regulations will require covered entities providing health care programs and services have accessible electronic information technology, including accessible websites.

While we continue to wait for new regulations for the websites of state and local governments, federal agencies and public accommodations, two new regulations from the Department of Health and Human Services (HHS) strongly suggest that health care provider websites must conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA to meet their non-discrimination obligations.

Effective July 18, 2016, a new “Meaningful Access” rule interpreting the Affordable Care Act’s (ACA) Section 1557 Anti-Discrimination requirements will require providers of health care programs and services that receive federal financial assistance comply with new requirements for effective communication (EIT) (including accessible electronic information technology), and physical accessibility.  Because most health care providers do receive federal funds through Medicare reimbursements, this rule has broad coverage.  Effective July 1, 2017, new Medicaid rules will require managed care programs to have (EIT) that complies with “modern accessibility standards,” and impose other effective-communication requirements such as large print and other alternative formats.

Section 1557 of the ACA requires covered entities to ensure that health programs and services provided through EIT be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens (in which case the entity must provide the information in an equally accessible alternative format) or a fundamental alteration in the nature of the health program or activity.   HHS did not specify a website accessibility standard in the new rule.   However, the agency said that compliance with accessibility requirements would be “difficult” for covered entities that do not adhere “to standards such as the WCAG 2.0 AA standards or the Section 508 standards,” and “encourages compliance” with these standards. Moreover, recipients of federal funding and State-based Marketplaces” must ensure that their health programs and activities provided through websites comply with the requirements of Title II of the ADA — requirements that are the subject of a pending rulemaking at the Department of Justice.  The Rule also requires providers to give “primary consideration” to the patient or customer’s auxiliary aid or service for communication.

The new Medicaid Rule will require that entities providing managed care programs provide information in a format that is “readily accessible”, which it defines to mean “electronic information and services which comply with modern accessibility standards such as section 508 guidelines, section 504 of the Rehabilitation Act, and W3C’s Web Content Accessibility Guidelines (WCAG) 2.0 AA and successor versions.”  The agency intends this definition to be more clear, reflect technology advances, and align with the requirements of Section 504, and recommends entities consult the latest section 508 guidelines or WCAG 2.0 AA.

While both rules make reference to the Section 508 standards for accessible websites which has been the standard for federal agency sites for many years, all indicators point to WCAG 2.0 AA as the standard to use when working to improve the accessibility of a website.  The federal government has issued a proposed rule to replace the existing Section 508 standards with WCAG 2.0 AA.  Most experts we deal with consider the Section 508 standards outdated.  WCAG 2.0 AA was developed by a private consortium of experts called the Worldwide Web Consortium (W3C), and is the website access “standard” in all U.S. Department of Justice (DOJ) settlement agreements. It is also the legal standard for all airline websites covered by the Air Carrier Access Act.  Moreover, DOJ has indicated in its Supplemental Advanced Notice of Proposed Rulemaking for state and local government websites that WCAG 2.0 AA should be the legal standard for such websites.